Armstrong 4: Documents by Date

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Andrew H. Wilson, SBN 063209
WILSON, RYAN & CAMPILONGO
115 Sansome Street
Fourth Floor

San Francisco, California 94104
(415) 391-3900
Telefax: (415) 954-0938

Laurie J. Bartilson, SBN 139220
MOXON & BARTILSON

6255 Sunset Boulevard, Suite 2000
Hollywood, CA 90028
(213) 960-1936
Telefax: (213) 953-3351

Attorneys for Plaintiff
CHURCH OF SCIENTOLOGY
INTERNATIONAL

RECEIVED
NOV 2 7 1995
HUB LAW OFFICES

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF MARIN

CHURCH OF SCIENTOLOGY
INTERNATIONAL, a California not-
for-profit religious corporation,

Plaintiff,

vs.

GERALD ARMSTRONG; DOES 1 through
25, inclusive.

Defendants.

) CASE NO. BC 157680

)

) PLAINTIFF'S REPLY IN
) SUPPORT OF MOTION FOR (1)

) SUMMARY ADJUDICATION OF THE
) FIRST CAUSE OF ACTION OF
) ARMSTRONG'S FIRST AMENDED
) CROSS-COMPLAINT; (2)

) SEVERANCE; (3) DISMISSAL OF
) UNADJUDICATED CLAIMS; AND
) (4) ENTRY OF FINAL JUDGMENT

)

) DATE: December 1, 1995
) TIME: 9:00 a.m.

\ r*.T? , D rn • l
J LsxuC X • JL

)

) TRIAL DATE: Vacated

)

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I. INTRODUCTION

The motion made by plaintiff. Church of Scientology
International, asks the Court to enter a series of orders
designed to bring the breach of contract aspects of this case to
an orderly conclusion. It is solidly based on the prior orders
of this Court, the Los Angeles Superior Court, and the Second
Circuit Court of Appeal, all issued in this case .

Armstrong has not responded to the bulk of the motion. The
Church's requests for severance of the fraudulent conveyance
action, dismissal of the remaining breach claims, and an
acknowledgment that the Church is the prevailing party, entitled
to attorneys' fees and costs, are not opposed, and should be
granted.

The only issue which Armstrong has addressed is whether the
Church is entitled to summary adjudication in its favor of
Armstrong's claim for declaratory relief. His response to that
issue is at best inappropriate, and at worst sanctionable. He
has:

1. Falsely asserted that this Court "has not ruled on
Armstrong's defense based on First Amendmet (sic) religious
liberty principles;"

2. Used this false assertion to improperly re-argue the
merits of motions which he has already lost;

3. Used this false assertion to re-file evidence which the
Court ordered stricken; and

4. Filed papers that are nearly identical in content to
his "points and authorities in support of motion for

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reconsideration," to which the Church has separately responded. 1
None of Armstrong's renewed vitriol, however, responds to

the undisputed facts presented by the Church's concise moving
papers. The records of this case demonstrate that every argument
made by Armstrong in this opposition has been made by him before,
sometimes three, four or five times, and that in each case he has
chosen to simply ignore the court's earlier rulings. However,
neither he, nor the Court, is permitted to do this. The
jurisdictional nature of C.C.P. Section 1008 mandates that a
Court may only reconsider its own earlier order by properly
following the dictates of that section.

II. STATEMENT OF FACTS

Armstrong begins his opposing papers by asserting that,
"[t]he Court has not ruled on Armstrong's defense based on First
Amendmet (sic) religious liberty principles," [Oppo., also
labelled "Points and Authorities in Support of Motion for
Reconsideration," at 1], and using this as the foundation on
which he bases the rest of his argument. However, Armstrong is
wrong. Not only did this Court just rule on this defense last
month, while granting two motions for summary adjudication, but
the issue was also decided by Judge Sohigian in 1992, and by the
Second District Court of Appeal in 1994.

1 Armstrong's opposition to this motion consists entirely of
arguments which he made in his motion for reconsideration, with
the exception of the introduction, the conclusion and a footnote.
In his word-processing frenzy, he has even duplicated the title
of the paper incorrectly (p.l). Rather than clutter the Court's
files with still more paper, plaintiff declines to re-process its
opposition to the reconsideration motion, set for hearing on the
same day, and instead incorporates it herein by reference as if
set forth in its entirety.

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Indeed, Armstrong has argued that the Agreement violates his
right to speak freely about religious matters since the very
first motion in this case. The Court of Appeal responded quite
decisively, holding that,

Although Armstrong's "freedom of speech" is
affected, it is clear that a party may voluntarily by
contract agree to limit his freedom of speech. (See In
re Steinberg (1983) 148 Cal.App.3d 14, 18-20 [filmmaker
agreed to prior restraint on distribution of film]; ITT
Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d
307, 319 [employee's agreement not to disclose
confidential information; "it is possible to waive even
First Amendment free speech rights by contract"]; Snepp
v. United States (1980) 444 U.S. 5u7, 509, fn. 3 [book
by CIA employee subject to prepublication clearance by
terms of his employment contract].)

[Ex. J to Request for Judicial Notice, Moving Papers, at 8-9] 2

Just last month, Armstrong made his religious beliefs the

cornerstone of his response to two motions for summary

adjudication brought by the Church. Arguing that "Armstrong

believes that his entire relationship with Scientology over the

past 25 years has been divinely inspired, and that God has called

upon Armstrong to speak out," 3 he filed 10 volumes of "evidence,"

most of it concerning his mistaken interpretation and criticism

of Scientology's beliefs. In its Order of Summary Judgment as to

2 Unless otherwise noted, all references are to exhibits to the
Request for Judicial Notice which was filed with the moving
papers.

3 This argument consumes two pages of Armstrong's brief in
Opposition to Motion for Summary Adjudication on (sic) the
Twentieth Cause of Action, (pp. 19-20) and is incorporated by
reference into his Opposition to Motion for Summary Adjudication
on the Thirteenth, Sixteenth, Seventeenth and Nineteenth Causes
of Action (p.l). The Separate Statements devote 90 paragraphs to
speech/religious allegations, and refer to more than 69 exhibits
that purport to relate to these issues. Armstrong has repeated
all of these allegations in his separate statement herein
(verbatim), and refers to all of the same evidence.

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the Thirteenth, Sixteenth, Seventeenth and Nineteenth Causes of

Action ["the Summary Judgment Order"] filed on October 17, 1995,

this Court ruled directly on this defense, granting summary

adjudication and holding,

FIRST AMENDMENT: First Amendment rights may be
waived by contract. (See ITT Telecom Products Corp. v.
Dooley (1989) 214 Cal.App.3d 307, 319.)

[Ex. D at 4]

This Order was signed on October 17, 1995, and served on
Armstrong the next day. Although Armstrong has filed a motion
for reconsideration concerning the Order of Permanent Injunction,
to which the Church has separately responded, he has not moved
for reconsideration of this Order.

III. ARGUMENT

A. Armstrong May Not Use His Opposition To Re-Arque Matters

That Have Already Been Decided

Code of Civil Procedure Section 1008(a) provides in
pertinent part,

When an application for an order has been made to
a judge, or to a court, and . . . granted . . . any
party affected by the order may, within 10 days after
service upon the party of written notice of entry of
the order and based upon new or different facts,
circumstances, or law, make application to the same
judge or court that made the order, to reconsider the
matter and modify, amend, or revoke the prior order.

The party making the application shall state by
affidavit what application was made before, when and to
what judge, what order or decisions were nade, and what
new or different facts, circumstances, or law are
claimed to be shown.

This section "is the exclusive means for modifying, amending
or revoking an order. That limitation is expressly
jurisdictional.'" Gilberd v. AC Transit (1995) 32 Cal.App.4th
1494, 1499 38 Cal.Rptr.2d 626, quoting . Morite of California v.

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Superior Court (1993) 19 Cal.App.4th 485, 590, 23 Cal.Rptr.2d 666
(emphasis supplied). Moreover, "[a]ccording to the plain
language of the statute, a court acts in excess of jurisdiction
when it grants a motion to reconsider that is not based upon 'new
or different facts, circumstances, or law.'" Gilberd . at 1500.

A party is not permitted to obtain reconsideration of a
Court's prior order by attacking it collaterally, rather than
bringing a 1008 motion. In Morite of California , supra, the
superior court granted petitioner's motion to stay a declaratory
relief proceeding until after the trial in a related case. Two
years later, before the related case had been tried, the case was
assigned to another superior court judge. On a status conference
questionnaire, the respondent requested that the court set the
matter for trial — in effect, vacating the earlier order. The
court did so, over petitioner's objection that the jurisdictional
limitations of C.C.P. §1008 prohibited the Court from changing
the stay order.

The Court of Appeal issued a writ of mandate commanding the
superior court to vacate the order setting the case for trial. In
so holding, the Court said,

[I]f courts may simply ignore interim orders
instead of modifying, amending or revoking them after
due consideration, then the procedural, substantive and
jurisdictional requirements of section 1008 are
meaningless. By making section 1008 expressly
jurisdictional, the Legislature clearly intended to
prevent courts from modifying, amending or revoking
prior orders without due reconsideration. Ignoring
(i.e., implicitly revoking) interim orders, such as the
prior stay order, undermines the Legislative intent
behind section 1008, subdivision (e).

19 Cal.App.4th at 492-493.

Here, Armstrong argues that his "First Amendment Defense"

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has not been ruled on, and is dispositive of plaintiff's motion.
He is wrong on both counts. As demonstrated in Part II, supra,
the defense has, indeed, been ruled upon, and against Armstrong.
Moreover, his defense is factually irrelevant to a motion for
summary adjudication of a cross-claim .

Assuming, arguendo, some relevance to Armstrong's lengthy
religious argument, Armstrong may not raise it again here, in the
context of an opposition to plaintiff's motion. Morite
demonstrates that a new motion does not open the door for a party
to obtain reconsideration of a prior order. That requires a
motion for reconsideration, made within ten days, along with an
affidavit describing the order and the new facts or law which
justifies the motion. Armstrong did not move for reconsideration
of the Summary Judgment Order and, with no new facts or law
presented within 10 days, may not. Assuming arguendo that
Armstrong's First Amendment defense has relevance to a motion for
summary adjudication of his cross-claim, it has already been
decided against him.

B. Armstrong Should Not Be Permitted To Refile
Exhibits Which Were Previously Stricken

Armstrong has refiled documents in support of his opposition
which this court has already stricken. In granting CSI's
previous motion to strike, this Court held.

The plaintiff has asked that the exhibits which
were previously ordered sealed be stricken as they are
trade secrets, irrelevant to this motion. This request
is GRANTED. They are not relevant. Further, they were
filed by Mr. Armstrong in pro per when he is, in fact,
represented by counsel.

[Court, Ruling of October 6, 1995, p. 2.] The Court thus held
that the documents in question were trade secrets, and not

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relevant to the matters at issue. They are still trade secrets,
and they are still not relevant to anything at issue in this
case. 4 This is underscored by the fact that Armstrong has filed
no new evidence in opposition to this motion, but simply re-word-
processed his opposition to earlier summary adjudication motions.
The documents in question should be stricken, and Armstrong and
his counsel sanctioned for filing them with the Court yet again.
C. The Church Is Entitled To Summary Adjudication

As demonstrated in the moving papers, no triable issue of
fact remains as to Armstrong's cross-claim for declaratory
relief. His questions have all been answered by this Court's
rulings in the main action. When the issues presented by a
cross-claim for declaratory relief are fully resolved against the
cross-complainant by resolution of claims contained in the
complaint, it is proper for the court to enter a judgment against
the cross-complainant on the cross-claim. International
Association of Firefighters, Local No. 1319. AFL-CIO v. City of

Palo Alto (1963) 60 Cal.2d 295, 32 Cal.Rptr. 842, 845-846.

Summary judgment is an appropriate procedure to use to resolve a
declaratory relief action. Al l is-Chalmers Corp. v. City of Oxnard
(1981) 126 Cal.App.3d 814, 818 n.3, 179 Cal.Rptr. 159, 161 n.3.

Here, the only relief which Armstrong seeks is

[A] judicial determination of his rights and

4 At the time that the earlier summary adjudication motions were
ruled on, plaintiff filed CSI's objections to Armstrong's
Evidence in Support of Opposition to Plaintiffs' Pending Motions
for Summary Adjudication; Motion to Strike Evidence; and Request
for Sanctions Against Gerald Armstrong and Ford Greene. Since
Armstrong has chosen to rely on precisely the same evidence that
he filed before, plaintiff renews those objections and that
motion without refiling duplicate papers.

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duties, and a declaration that the only provisions of
the settlement agreement which are valid are those
which directly pertain to the dismissal of his cross¬
complaint in Armstrong I in consideration for the
payment of a sum of money, and that paragraphs 4A, 4B,

7D, 7G, 7H, 71, 10, 18D, 18E of the settlement
agreement should be severed and held not to be legally
enforceable because they were designed to suppress
evidence and obstruct justice.

[Ex. G to Request for Judicial Notice, Verified Amended Cross-
Complaint, p.29, f 61]

As demonstrated above and in the moving papers, this Court
has already judicially determined all of these issues against
Armstrong. Under these circumstances, the Church is entitled to
summary judgment of Armstrong's cross-claim for declaratory
relief, declaring that Armstrong is not entitled to any of the
relief which he requested.

D. The Remainder Of Plaintiff's Motion Should Also Be Granted

In an effort to resolve this case as rapidly as possible,
plaintiff has also asked the Court to take a series of steps
which will effectively end litigation in the breach of contract
case. Armstrong has not opposed these. Accordingly, and for all
of the reasons set forth in the moving papers, the Church
requests that the Court:

1. Enter an order of summary adjudication in favor of
plaintiff/cross-defendant and against defendant/cross¬
complainant on the First Cause of Action for Declaratory
Relief contained in Armstrong's First Amended Cross-
Complaint from the original breach of contract case. This
cross-claim is the only remaining claim of Armstrong's, and
it seeks declaratory relief as to provisions of the contract
which this Court has already enforced against Armstrong;

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2 .

Enter an order severing the fraudulent

conveyance action from the breach case. The
adjudication of this action as to Armstrong is stayed
pending the bankruptcy, and the action at present
belongs to the trustee in bankruptcy, who has not
relinquished it; and

3. Enter an order dismissing those of plaintiff's
claims not already adjudicated by summary adjudication.

Once these matters have been resolved, all of the issues
remaining in this case will have been finally adjudicated in
plaintiff's favor. The Church requests that the Court enter
final judgment for the Church in the form of the Orders granting
summary adjudication, including permanent injunction and $300,000
in damages, together with costs and fees as prayed in the Second
Amended Complaint. The Church also requests that the Court
adjudicate that it is the prevailing party on the contract,
pursuant to Civil Code Section 1717, and thus entitled to recover
its attorneys' fees and costs.

IV. CONCLUSION

Armstrong has presented no relevant arguments or evidence in
opposition to plaintiff's motion for summary adjudication.
Instead, he argues that the Court has not already ruled, when it
has, and improperly seeks reconsideration of that ruling. This
attempt to covertly obtain reconsideration should be rejected.
Further, Armstrong has not opposed the remainder of the Church's
motion. It should, accordingly be granted.

Therefore, the plaintiff, Church of Scientology
International, requests that this Court enter final judgment in

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its favor, by (1) granting the motion for summary adjudication of
Armstrong's last remaining cross-claim; (2) severing the
fraudulent conveyance action from the breach case; (3) dismissing
those of plaintiff's claims which have not yet been adjudicated;
and (4) entering final judgment against Armstrong pursuant to
plaintiff's motions for summary adjudication already granted, in
the amount of $300,000 and a permanent injunction, together with
attorneys' fees and costs.

Dated: November 22, 1995 Respectfully submitted.

Andrew H. Wilson

WILSON, RYAN AND CAMPILONGO

MOXON & BARTILSON

By

Laurie J. £cirtilson

Attorneys for Plaintiff
CHURCH OF SCIENTOLOGY
INTERNATIONAL

10

PROOF OF SERVICE

STATE OF CALIFORNIA )

) SS.

COUNTY OF LOS ANGELES )

I am employed in the County of California, State of
California. I am over the age of eighteen (18) years and not a
party to the within action. My business address is 6255 Sunset
Boulevar, Suite 2000, Hollywood, CA 90028.

On November 22, 1995 I served the foregoing document described
as PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR (1) SUMMARY
ADJUDICATION OF THE FIRST CAUSE OF ACTION OF ARMSTRONG'S FIRST
AMENDED CROSS-COMPLAINT; (2) SEVERANCE; (3) DISMISSAL OF
UNADJUDICATED CLAIMS; AND (4) ENTRY OF FINAL JUDGMENT on interested
parties in this action,

[ ] by placing the true copies thereof in sealed
envelopes as stated on the attached mailing list;

[X] by placing ( ] the original [X] true copies

thereof in sealed envelopes addressed as follows:

Ford Greene

HUB Law Offices

711 Sir Francis Drake Blvd.

San Anselmo, CA 94960-1949

MICHAEL WALTON

700 Larkspur Landing Circle

Suite 120

Larkspur, CA 94939

[ ] *1 deposited such envelope in the mail at Los
Angeles, California. The envelope was mailed with
postage thereon fully prepaid.

[X] As follows: I am "readily familiar" with the
firm's practice of collection and processing
correspondence for mailing. Under that practice it
would be deposited with U.S. postal service on that
same day with postage thereon fully prepaid at Los
Angeles, California in the ordinary course of
business. I am aware that on motion of party
served, service is presumed invalid if postal

cancellation date or postage meter date is more
than one day after date of deposit for mailing an
affidavit.

Executed on November 22, 1995 at Los Angeles, California.

[ ] **(BY PERSONAL SERVICE) I delivered such —

envelopes by hand to the offices of the addressees.

Executed on_, at _, California.

[X] (State) I declare under penalty of the laws of
the State of California that the above is true and
correct.

[ ] (Federal) I declare that I am employed in the
office of a member of the bar of this court at
whose direction the service was made.

* (By Mail, signature must be of person depositing
envelope in mail slot, box or bag)

** (For personal service signature must be that of
messenger)